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Maintaining the principle of separation of powers in Nigeria 12 Apr 2018

Nigerian President Muhammadu Buhari, Senate President Bukola Saraki and Chief Justice Walter Onnoghen

The principles of separation of powers and checks and balances facilitate the efficient working of – and harmonious interaction between – the three arms of government in a federal or presidential system like ours. However, there is a delicate balance to be maintained such that in the process of checking the excesses of a particular arm or branch of government, one branch does not usurp the powers or encroach on the functions of the other. Each arm must maintain its independence and control.

But in Nigeria, that balance has been stretched in many instances. The presidency issues executive orders that read more like legislation; the National Assembly – under the guise of investigations carried out under Section 88 of the Constitution – issues directives to heads of ministries and agencies of government that are under the executive arm. We might, however, have crossed the line this time with the court order restraining the National Assembly, albeit temporarily, from amending an Act.

All the saga surrounding the proposed amendments to the Electoral Act 2010, part of which include a change to the sequence of the general elections – which has already been announced by the Independent National Electoral Commission (INEC) –  seem to stem from a self-serving political agenda. It is no longer news that the President has refused to give assent to the proposed bill. The National Assembly has reacted by making a move to gather two-thirds majority votes in both legislative houses to override the President's veto.

Indeed, the National Assembly is within its powers to make and amend laws. Section 4 of the Constitution vests the legislative powers of the Federal Republic of Nigeria in a National Assembly that consists of the Senate and the House of Representatives. Section 6 vests the judicial powers of the federation in the courts.

Thus, in the distribution of powers amongst the branches of government, the courts are vested with the exclusive right to determine justiciable controversies between citizens and between citizens and the State.

The question that is to be answered is whether in the course of determining a controversy submitted to it for adjudication, the courts can prevent the National Assembly from carrying out its own function.

Displeased by the proposed amendments to the Electoral Act, the Accord Party has filed a suit at the Federal High Court Abuja against the National Assembly, the Attorney General of the Federation and INEC. A Vanguard Newspaper report of 14th March, 2018 showed that the suit challenges clause 25 of the Electoral Act Amendment Bill 2018, which mandates INEC to follow a particular sequence of election.

The suit also maintains that INEC has constitutional powers to organize, undertake and supervise elections and this would include determining the sequence, and fixing the dates, of elections. Furthermore, it argues that the National Assembly in promulgating clause 25 of the Amendment Bill interfered with or curtailed the powers, rights and discretions of INEC, thus making it unconstitutional, null and void.

The suit is seeking declarations to that effect as well as orders of perpetual (permanent) injunctions restraining the President (represented in the suit by the Attorney General of the Federation) from assenting to clause 25 of the Bill and the National Assembly from passing it into law with a two-thirds majority.

On 14th March, 2018, the Federal High Court in Abuja made an order restraining the National Assembly from proceeding with passage of the Bill into law until the final determination of the suit. The court, maintaining that the order did not amount to granting the reliefs sought in the suit, stated that it was necessary to preserve the subject-matter of the suit before it as there would be nothing to determine if the National Assembly is allowed to proceed with passing the Bill.

Whichever explanation accompanied the court's order and for however short or long the duration of the order, the fact is that the court has ordered the National Assembly not to proceed with passing a bill into law until it determines the constitutionality or otherwise of the provisions of the bill. If that sounds like a usurpation of the powers of the National Assembly or at the very least, an attempt to control the exercise of those powers, it is because it is.

In the same week this order was made, the public hearing at the House of Representatives on the controversy surrounding the prevention of a University of Ilorin law graduate from being called to the bar over her refusal to remove her hijab was postponed indefinitely. The hearing was postponed as a result of an order by the Federal High Court restraining the National Assembly from proceeding with it pending the determination of a substantive suit before it.

Apart from briefly noting the legal disparity in asking the court to set aside a Bill that has no force of law as yet, the merits of the case by Accord Party, being a live issue before a competent court of law, would not be considered in this article. The issue at the moment is whether the order made by the court is within the powers of the court or it amounts to an infringement on the powers of the National Assembly, in which case the court exceeded its powers.

Undoubtedly, courts of law have inherent powers to grant ex-parte injunctions (orders made without hearing the opposing parties and meant to last for a very short period of time). The exercise of these powers is at the discretion of the judge who is to exercise them judicially and judiciously. Though there are legal principles governing the granting of such injunctions, the rationale behind them is that the delay to be caused by proceeding with the ordinary legal procedure (putting the opposing sides on notice and allowing for the time given to them to file their response) would cause such a serious and irreparable damage or mischief to the plaintiffs. The idea is to preserve the status quo until a date or until further proceedings in the suit.

It is also not in doubt that courts have the powers to declare any law made by the National Assembly null and void to the extent of its inconsistency with the Constitution, being the grundnorm from which all other laws and acts derive their legality. I do not, however, believe that those powers extend to determining the constitutionality of a bill yet to be passed, or restraining the National Assembly from passing an 'unconstitutional' law. Those acts, apart from been premature, would amount to telling the National Assembly what laws to make.

The courts themselves from as far back as the 1980s' set down three guiding principles to ensure the workability of the doctrine of separation of powers: 1) that each of the three branches of government must be in the hands of different persons; 2) that no one branch has control of the other; and 3) that no one branch performs the function of another. Each arm of government is separate and equal and no arm can take over the functions constitutionally assigned to the other.

Notwithstanding the equality of the three arms of government, there is still the lack of financial autonomy for the judiciary in Nigeria. It is, however, not a good enough reason to allow the lines to blur even further.

With the timeframe within which this Bill must be passed for it to have effect on the 2019 elections (Article 2(1) of the ECOWAS Protocol on Democracy and Good Governance provides that “no substantial modification shall be made to the electoral laws in the last six (6) months before the elections, except with the consent of a majority of political actors.”), one can almost sense a game involving timing at play here.

The political intrigues, though largely unexciting due to the lack of a robust and fierce opposition, are needed for a strong democratic system. They must, however, never undermine the core principles and values upon which our democratic system stands. We must not allow politics to be played to the detriment of principles such as separation of powers.

The Bill that has given rise to this quagmire might not be of much interest to the regular Nigerian who thinks this is all a 'political fight.' Nevertheless, we must be wary of setting precedents that might be difficult to overturn.

A Financial Nigeria columnist, Funmilayo Odude is a Lagos-based legal practitioner, and a public affairs analyst.